Baumguardner v. State

DAVIDSON, Judge. This is a conviction for the unlawful transportation of beer in a dry area, with punishment assessed at a fine of $100. A highway patrolman’s attention was directed to a “toe” sack in a “borrow ditch” along a public highway. The sack contained twenty-four cans of beer. To connect appellant with the transportation of the beer, the state relied upon proof of the fact that the automobile he was driving when stopped by the patrolman had passed along the highway shortly before the sack was found and that the witness who first saw the sack and called the patrolman’s attention thereto testified that he had not seen it prior to the time appellant drove along the highway. In addition to the foregoing, some eleven sacks similar to that containing the cans of beer were found in appellant’s automobile. Appellant insists, and our state’s attorney concedes, that the facts are insufficient to support the conviction and go no further than to present a suspicion or supposition. With that contention we are in accord. See: Cropper v. State, 160 Texas Cr. Rep. 412, 271 S.W. 2d 818; Cox v. State, 160 Texas Cr. Rep. 162, 267 S.W. 2d 830. The facts being insufficient to support the conviction, the judgment is reversed and the cause is remanded.